The oral argument has been presented to the US Supreme Court in the momentous Dobbs v Jackson Women’s Health Organization case which challenges the constitutional right to abortion in America. It is always challenging to read too much into oral argument in terms of how the justices might rule in a particular case. With that caveat in mind here is my initial reading of the tea leaves: The arguments make it pretty clear that it is all or nothing for Roe and Casey. There seems to be little interest in a “middle ground.” The odds clearly favor overturning both these horrible rulings.
Let me first say that I think Mississippi Solicitor General Scott Stewart did a superb job of presenting the pro-life position that Roe and Casey were wrongly decided and should be reversed. They were wrong on the days they were decided and they are wrong now. There is nothing in America’s constitution, history or tradition that creates a federal right to abortion. The fifty years of conflict that have flowed from Roe and the thirty years since Casey have demonstrated that not only are the decisions wrong, they cannot be administered in any predictable, fair fashion and the time has come for the Court to return the issue of abortion to where it belongs – to the states.
The Court’s three liberals made it clear that overturning Roe and Casey, or changing anything about those rulings, was out of the question to them. In their view, doing so would wreak havoc on women and essentially deny them the right to be equal participants in society. This was echoed by the attorneys for both the abortion provider, Jackson Women’s Health Organization, and the Biden Administration’s US Solicitor General. This strategy seems to foreclose any notion that a compromise might be forged that saves the constitutional “right” to abortion but changes the rules as to how and when this may be abridged. It’s an all or nothing legal strategy.
Chief Justice John Roberts has been seen by many as someone who might push for a compromise position, and he did so several times during the oral argument, suggesting that he may be open to considering eliminating the current viability standard – the point where a pre-born child is said to be able to survive outside the womb, presently at 24 weeks. If viability was not the standard for review, and instead the question of whether a law presented an undue burden on a woman’s “right” to abortion, then Mississippi’s 15-week ban may well be found to be constitutional. However, as mentioned this “compromise” position suggested by Roberts found no support from abortion proponents or the three liberals on the Court.
Another potential swing vote has been said to be Justice Brett Kavanaugh, but Kavanaugh repeatedly indicated that the Constitution says nothing about the right to an abortion and appeared to adopt the position of Mississippi that the Court should be “scrupulously neutral” on the issue, allowing the states to work the issues out as their citizens and elected officials see fit. He pointed out that there are critical interests on both sides of this issue. Women have an interest in bodily integrity and liberty, while the unborn child has an interest in maintaining its life. These interests are irreconcilably in conflict; one interest has to prevail over the other at any given point in time. The question, he asked rhetorically, is what does the Constitution says about resolving these difficult questions? Why should this Court be the arbiter rather than Congress, state legislatures and the people?
As predicted, a key focus of abortion supporters was to hang their position on the legal doctrine of “stare decisis,” the principle that because people rely on Supreme Court rulings to organize their lives, these rulings must be preserved even if one thinks they were wrongly decided. This notion was directly challenged by Justice Alito, who pressed both the US Solicitor General and the attorney for the abortion provider for a yes or no answer to the question of whether a ruling that was clearly wrong when issued should be overturned on that basis alone. The advocates eventually said no, even clearly wrong precedents should be maintained due to citizen reliance on them.
This was totally undercut by Justice Kavanaugh who read off a long string of major US Supreme Court rulings that did overturn wrongly-decided precedents. To me, this was devastating to the position of the abortion proponents.
My strong impression is that Justices Thomas, Alito, Gorsuch, and Kavanaugh all asked questions strongly suggesting that they reject the idea that wrongly-decided cases such as Roe and Casey should be maintained. Reading the tea leaves, that’s four of the five justices needed for a majority.
This brings me to Justice Amy Coney Barrett. On the one hand, at several points she pointed to ubiquitous “safe haven” laws that would allow women to leave unwanted newborn children at various locations such as fire houses and be relieved of any subsequent parental obligations. Her questioning on this point undercuts all the parade of horribles raised by abortion proponents about the consequences of “forced parenthood” and “forced motherhood” – alleged impacts on career, future earnings, future family formation, etc. She challenged the attorney for Jackson Women’s Health for stressing these supposed problems without acknowledging that women could easily avoid them because of existing safe haven opportunities.
On the other hand, Barrett also questioned what would happen if a state had a constitutional provision identical to the 14th amendment and a state court then ruled that abortions were protected through the second trimester, or 27 weeks. Such a ruling would effectively increase the right to abortion beyond the Casey viability standard (generally considered to be 24 weeks). My ears perked up with her hypothetical, making me wonder if she might be open to considering Roberts’ “middle ground” approach. I may be making something out of nothing. A legal analyst I greatly respect, Ed Whelan, said “Nothing from Justices Thomas, Alito, Gorsuch, Kavanaugh, or Barrett set off any alarm bells in my mind. On the contrary.”
Again, reading tea leaves is difficult in most every case, let alone in a case as momentous as Dobbs. That said, I don’t know how Roberts gets 5 votes for his “middle ground” approach unless he gets Barrett and somehow convinces the three liberals to go along with an idea they all strongly oppose. There are at least four justices in my view who will repeal Roe and Casey. Barrett would make five. Are we looking at a 5-4 decision?
I leave you with the observation of National Review legal analyst Dan McLaughlin, “Now, we wait until late June, and of course, we hope nothing happens to the Justices in the interim. But it is hard to see how pro-lifers could be more optimistic about how this argument went… We’ve had the football pulled away from us before in big cases, so take all of that with a grain of salt. But if you envisioned the Court finally overturning Roe, this is about how you’d have expected the argument to go.”
Let us pray for an end to the abomination that has been Roe and Casey. The souls of some 60 million sacrificed unborn children join us in our plea.